Publishers/Authors Angry at Amazon Selling Used Books

curtS writes "Cnet has a piece about industry reaction to Amazon's now offering used books. A copy of the Authors Guild letter to Jeff Bezos is here." I've got a discussion piece from tytso as well below - what do you think about it?

tytso writes:

In my opinion there are plenty of subjects for which Bezos deserves to be berated, including overly agressive accounting tactics, and their one-click patent. But selling used books?

The Authors Guild's argument is that authors don't get any compensation if someone purchases a used book; only the seller and Amazon.com make out on the transaction. So when amazon.com makes it easier for consumers to buy and sell used books which could also be purchased new --- at a more expensive price, of course --- it hurts the authors. The Authors Guild and the Association of American Publishers would prefer that Amazon.com only allow their users to sell used books if they are out-of-print books.

Well, excuuuuuuuse me! I can understand that authors need to eat, and send their kids off to college, and all those good things. But if a book wasn't good enough for me to want to keep it, why shouldn't I be able to sell it? Using the same logic, the Authors Guild should logically be against public libraries. After all, people who use libraries can (oh horrors!) read a new book without having to pay for it!

This really goes to show the fundamental tension between content providers and consumers. If you take the Authors Guild position to its extreme, you'd think that they would much prefer that bookreaders purchase books from bookstores, and if they didn't like it, that they throw it into a landfill rather than resell it or give it away, or lend it to a friend. After all, all of these activities compete with new book sales. Fortunately for us, the doctrine that the owner of a book is allowed to do all of these things is fairly strongly encoded into law --- which is why all the President of the Authors Guild can do to write a whiny letter to Bezos asking him to please don't do this.

And thus we see the danger of the positions espoused by the Software Publisher's Association, and UCITA. Not only do they wish to take away our rights about what we can and can't do with software --- including rights which common sense would dictate are perfectly permissible in the case of the physical world, such as selling or loaning a book to a friend --- but their actions have emboldened folks such as the Authors Guild and the Association of American Publishers to try to take away rights which we always have had in the physical world. After all, if the software vendors can restrict what you can do their software, why shouldn't a book publisher be able to restrict what you can do with their books?

Fortunately, most book publishers don't have as much money to throw around as Disney, so they probably won't be able to purchase enough Senators to change copyright law to suit their purposes. But when thought patterns of the SPA have started infecting traditional book authors --- who really should know better --- it's obvious that we're living in dangerous times."

Comments

Selling used content is a GOOD idea!

[CritterNYC]

I'm all for selling used books, CDs, movies and just about anything else you can come up with. Why? Because it encourages the creation of longer-lasting works... instead of much of the throw-away pop-culture stuff that permeates our culture today. If you create a cheesy pop tune or fluff book... you'll still get paid for people buying it. But, as people tire of it and start selling their shiny new copies as used, you make less. On the other hand, if you create a truly interesting novel or ground-breaking CD, people will buy it and hold on to it... and, even better, tell their friends.

Also, let's not forget that these are the SAME people who didn't like Amazon allowing people to post online reviews of books. Seems they thought that if people found out a book sucked, they might not buy it, and that isn't fair to the author now is it.

Re:Books as media or content?

[LionKimbro]

Ah-hah!

And we shouldn't let people give their books to other people, either! Cuts into writer's pocketses, oh yes- it does!

But, wait- What about if I bought a CD before, but I lost it 10 years ago. I have to buy it again? WHAT?!

I'm one person. But I had to pay twice. What's with that? It now seems that we have one person with knowledge of the content, but the author has been paid twice..!

what makes you think they aren't?

[gonar]

Using the same logic, the Authors Guild should logically be against public libraries.

what makes you think they aren't?

just like the record and movie industry, authors would like books to be pay-per-view.

this desire, by the way, is the one thing that is likely to insure the future of e-books.

No, just an appeal to enlightened self interest.

[hey!]

In legal cases involving copyright/trademark infringement, it's generally understood that a company can't credibly raise a fuss over one case of infringement if they've knowingly overlooked it repeatedly in the past. I think the same principle should apply here. They've allowed public libraries to loan out books for decades, and small used book stores to sell titles for almost as long.

First of all, IANAL but I believe that trademark and copyright law are two completely different animals.

Secondly, the author's aren't making a legal argument, so much as a ethical and tactical argument. The problem is that it's really hard to make a living as an author if you aren't in the following list (more or less): Carol Higgins Clark, Danielle Steele, Robert Ludlum, Tom Clancy, Ann Rice, Michael Crighton, John Grisham, J.K. Rowling. These authors probably account for 99% of all book sales.

An outfit like Amazon is a godsend for the 99.99% of the authors who live off the remaining 1% of sales. Likewise Amazon depends upon these people; if everything boiled down to the ten or so top selling authors then all booksales could be taken care of at the airport news counter. The relationship between minor authors and Amazon is symbiotic. If Amazon perturbs relationship to its own short term benefit, then over the long term the vitality of the non-best seller market suffers and (so the argument goes) does Amazon. Thus tactically it is bad, and it is generally considered morally questionable to benefit from an institution and to undermine it at the same time.

Taking the argument further, used bookstores of various stripes don't affect new book sales. Most of their stock would be destroyed if it was at a new bookstore.

Personally, I think its all just a tempest in a teacup. There can't be significant sales of used copies until there are significant sales of the new book. While prominently displayed used copies on the face of it cut into new sales, they may also in the long run increase sales by allowing obscure works to generate word of mouth, the way library and privately lended copies do. Probably most copies of Titus Groan (plug plug) were bought by people who have read or borrowed a used copy.

Re:It's all about greed.

[TrentC]

What makes the Authors' Guild believe that its members are somehow sacrosanct in that they must profit from every transaction between two entities?

He's right! That's the government's job!

(I know, I know, it was so obvious, but I couldn't help myself...)

Jay (=

Double standard?

[mblase]

From the letter:

We understand that Amazon wishes to provide customers with all manner of services including the ability to buy and sell used books. However, as a leader in the bookselling industry, Amazon's sales practices can have a significantly deleterious effect on new book sales. If your aggressive promotion of used book sales becomes popular among Amazon's customers, this service will cut significantly into sales of new titles, directly harming authors and publishers.

I see. It's okay for people to buy and sell used books, as long as they're not market leaders.

In legal cases involving copyright/trademark infringement, it's generally understood that a company can't credibly raise a fuss over one case of infringement if they've knowingly overlooked it repeatedly in the past. I think the same principle should apply here. They've allowed public libraries to loan out books for decades, and small used book stores to sell titles for almost as long.

Raising a fuss now just because a market leader wants to sell both new *and* used books side-by-side is likely to fall on deaf ears.

Books as media or content?

[11223]

Many, many, people here seem to think that a book is simply the media upon which it was printed. Because the book is simply media, you would have the right to sell it to whomever you please, however you please. However, those who actually devote themselves to creating such content see it differently. To them, a book is its content, and even a book no longer in your physical posession is still in your brain.

When I read a copy of The Republic or Soon To Be Another Sean Connery Movie, it doesn't go away the second I put the book down. You remember things about it. You make jokes with your friends about it later, or you reference the material. That's why a book is content. Now, when I buy a book from you, do you cease to do those things? Do you forget the book? Of course not! It now seems that we have two people with knowledge of the content, but the author has only been paid once.

It's not easy to make a living off of writing, but if you do you view yourself not as a paper-manufacturer but as a story-writer or an idea-creator. The ideas and the stories are what you sell; the physical medium is immaterial to you. Why should an author only be paid once when two people gain the ideas or learn the stories?

Re:Books as media or content?

[TwizzlerMan]

So, does that mean when my wife reads a book to my children at night, we should have to pay a fee to the author/publishers for each child hearing it since more than one person will now have knowledge of that content?

Re:Books as media or content?

[Chris Johnson]

How about a counter-example? Why should an author keep getting paid when people continue to transfer ideas the author had years ago? Pretty much any serious working author _continues_ to have new ideas. Why should authors be paid on a basis of intellectual property when they can be paid on the basis of being skilled idea-producers: paid not on a basis of (futilely) controlling 'property' of ideas, but on the basis of being the preferred source of _new_ idea-having work?

If I wanted to be told a _new_ scary story, one I hadn't heard before, whom would I rather pay- you, or Stephen King? Stephen King has a much better reputation for being able to tell such a story, and he also continues to make up new stories, he does not ride on his back catalog. That's the only way to be successful as an author- nobody said it was supposed to be a free ride.

It is absurd to expect to be paid as an idea-creator in the sense of manufacturing widgets or physical objects. If you are an author you are selling your capacity to _produce_ such ideas, not the ideas themselves (there's a million of them).

If you doubt that, write a brilliant book and try to get a publication deal while saying, "I don't think I'm going to write any more books. Isn't this one enough?"

Tough

[gavinhall]

Posted by polar_bear:

I'm a published author who has books on Amazon,
("Install, configure and Customize Slackware Linux") but I wouldn't dream of complaining about people buying my book used. If someone buys it and decides to pass it on, oh well. That's their right -- they paid for it and they can do with it what they will.

All of the authors mentioned in the letter are high-profile authors who are already making decent money for their writing. Just like the record companies, this is an example of greed, not protection of working-class individuals.

I never thought that I would be on Amazon's side, but in this case I have to say that I think that they should continue this practice.

Hello? Realspace example.

[SymphonicMan]

In Portland, Oregon, where I live, we have a chain of local stores called "Powell's Books". This is an independent chain, doesn't operate outside the area, and is one of the largest independent booksellers left in the country. It's a great store, in part because of a shelving policy they have. Like many bookstores, Powell's sells used books.

There's more, though. They shelve the used books right alongside the new books. So if I walk into Powells and want to buy a copy of a book, more often than not I walk out with a used copy.

This is an almost exact realspace parallel with what Amazon is "guilty" of doing. Why does Amazon get this letter, then? Because it's a big target and it's in cyberspace, home of criminals and intellectual property pirates. Bah. My open note to Jeff Bezos: Tell the Author's Guild to go to hell.

-SymphonicMan

Re:Very bad idea

[gaijin99]

Actually their "compromise" was that amazon only sell out of print books used. Moreover even the moderate "compromise" that the user be forced to scroll down is a very bad idea.

They cannot be allowed to dictate terms to Amazon. I don't like Amazon and I won't buy from Amazon, but the Author's Guild is trying to do something very wrong here. The books are sold and then they are the property of the people who own them. This is the same thing Matel ran into with the people selling modified Barbies. Once you sell someone something it belongs to them. If Amazon wants to make it easier for people to buy and sell used books I say "Yay Amazon". If Amazon caves in to the Author's Guild on this what will they demand next? A kickback for every used book sold? This would set a bad prescident and encourage furthur dictates from the content providers.

Remember Garth Brooks and Used CDs?

[StandardDeviant]

Remember a few (4?5?) years back when Garth Brooks was raising a big stink about how used CDs were hurting musicians? It seems like every field of creativity has had these issues WRT reselling of used content at some point now. (I bet somebody pissed and moaned about used records decades ago.)

Just goes to show there really isn't anything new under the sun...

As far as the authors/musicians/whoever go my sympathy is limited. If their content was good enough to keep it wouldn't get resold.

--

Publishers want to break the law!

[coats]

IANAL, but:

In the case of Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908) [sorry, the web-links I know are fee-for-service: WestDoc or Lexis-Nexis], the Supreme Court held that the exclusive right to sell copyrighted works only applied to the first sale of a copyrighted work. 210 U.S. 339, 349-350.

While the copyright owner retained the underlying copyright to the expression fixed in the work, the copyright owner gave up his ability to control the fate of the work once it had been sold.

More recently, on March 9, 1998, the Supreme Court unanimously ruled that the first sale doctrine applies to copyrighted goods produced in the United States and sold in foreign markets. In the case of Quality King Distributors, Inc. v. L'anza Research International, Inc., 1998 WL 96265 (U.S. Cal.), the court held that the first sale doctrine prevents copyright owners from controlling the importation of copyrighted goods sold outside the United States. The court found that section 602(a) of the Copyright Act, 17 U.S.C. 602(a), gives copyright owners the right to control the importation of copies into the United States, is an extension of the copyright owner's exclusive right to distribute copies under section 106 and not an additional right of the copyright owner.

So the Authors Guild action is an attempt to do an end-run around the Supreme Court. As far as the "earn no payment for the authors and publishers of the book" goes, that is exactly the point -- the SC says that they have already earned their payment and are not due more!

This is an unconscionable power play and should be slapped down as such. Go, Jeff Bezos!

Text of Title 17, section 109 "Fair Use Doctrine"

[rebill]

Cornell has the legal text for the Fair Use Doctrine on-line here.

Of note is this text:

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

In other words, the Author's Guild does not have a leg to stand on, until the day someone sells a book that they did not own. If they try to enforce this, they could be eating a Sherman Anti-Trust Act lawsuit.